2000 PLP 2482 (YLR)

‑‑‑‑O.IX, R.7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Setting aside of ex parte proceedings‑‑‑ Petitioner was proceeded ex parse thrice during trial‑‑‑Trial Court refused to set aside ex parte proceedings initiated for third time, so did Lower Appellate Court ‑‑‑Validity‑‑ Petitioner failed to give any explanation for default made by him on the last occasion‑‑ Findings of both the Courts below that the petitioner intended to delay the proceedings was supported from the record‑‑‑Petition was dismissed in circumstances. Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Dr. Sajjad Ahmad and another v. Dr. Muhamamd Bashir and 10 others PLD 1979 Lah. 304 distinguished. Ch, Ayyaz Muhammad Khan for Petitioner Muhammad Mumtaz Malik for Respondents. Date of hearing: 7th March, 2000, This Constitutional petition seeks to assail an order of Additional District Judge, Multan, dated 15‑5‑1997 passed in Civil Revision No. 137‑R of 1994 whereby the order rejecting application for setting aside ex parte proceedings was maintained.

2. On 16‑9‑1991, the present respondent Shaukat Ali filed a suit for pre- emption in respect of land measuring 6 Kanals, 8 Marlas, described on the face of the plaint. It was contested by the respondent. However, the present petitioner during the pendency of the suit was proceeded ex parte at least twice. Thereafter, on 19‑6‑1993 ex parte proceedings were ordered against him for the 3rd time. His application for setting aside ex parte proceedings was also rejected on 6‑12‑1993. Earlier, the trial Court concluded that he had been guilty of wilfull default and negligence in defending the suit. Also that no plausible cause (sic) has been mentioned for non‑appearance of . the defendant, on the said date, his application could not be granted.

3. As noted earlier, the learned first appellate authority District Judge, Multan by way of the impugned order maintained ‑the dismissal of application. ,

4. The learned counsel for the petitioner contends that the eventful day i.e. 19‑6‑1993 not being a day fixed for hearing ex parte proceedings against the present petitioner were totally without jurisdiction. In support of the contention that 19‑6‑1993 was only fixed for tiling of written reply the defendant No.2 which could not be taken it. It date of hearing for proceeding ex parte, the learned counsel relies upon PLD 1991 SC 1104 Re: Muhammad Hussain v. Allah Dad and 13 others. Also seeks support from PI.D 1975 SC 678 Re; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another to state that legal formalities and technicalities could not be allowed to defeat ends of justice. In support of maintainability of the Constitutional petition against the order passed by a District Judge in revision reliance is placed upon PLD 1979 Lahore 304 Re: Dr.. Sajjad Ahmad and another v. Dr. Muhammad Bashir and 10 others.

5. The learned counsel for, the respondents, however, opposes the grant of prayer or entertainment of the petition. From the proceedings before the trial Court; he maintains that the present petitioner appeared on 9‑12‑1991 when ex-parte proceedings were directed against him on publication of notice and these proceedings were set aside subject to payment of costs of Rs.

400. Thereafter, again ex parte proceedings were made against him and then set aside on 21‑2‑1993 subject to costs of Rs.

600. In respect of the 3rd ex parte proceedings which is now in question, he supports the orders of the Courts below for the reasons stated therein.

6. On considering of rival arguments, I am not persuaded to interfere for the petitioner in Constitutional jurisdiction. The conduct of the petitioner during the proceedings before the trial Court clearly disentitled him to a discretion to set aside the ex parte proceedings. The conduct of the petitioner being contumacious as he was proceeded ex parte on earlier two occasions, the learned trial Court was right in refusing him another ' opportunity to prolong the proceedings. The learned first appellate authority also appears correct in declining to interfere for a person who failed to participate in the proceedings without a justifiable cause. Even if the day appointed was not a date of hearing, the petitioner was obliged to explain his absence and to prove it to the satisfaction of the Court.

7. At any rate, the discretion of the trial Court in setting aside ex parte proceedings can hardly be questioned in Constitutional proceedings. It is not the case of the petitioner that the Courts below were not competent to pass an order. The only submission that on account of a particular nature of proceedings contemplated on the date fixed for hearing ex parte proceedings could not be taken can hardly be described as a jurisdictional fact to be interfered with in Constitutional jurisdiction. Any person directly or indirectly misusing the process of law or abusing the procedure can hardly be said to be entitled to be a discretionary relief in Constitutional jurisdiction. The fact that the petitioner was proceeded ex parte thrice during the proceedings is not denied. No explanation, whatsoever has come forth for the default made by the present petitioner on the last occasion. Therefore, the findings of the Courts below that the petitioner intended to M delay the proceedings finds support from the record. Accordingly, in the given situation, none of the reported judgments relied upon by the learned counsel for the petitioner are attracted.

8. Petition dismissed with costs. Q.M.H./M.A.K./M‑80/L. Petition dismissed.